IMPORTANT POINT
Merely because witness was a co-accused with deceased in some cases would not warrant mechanical rejection of his testimony but would need evaluation with caution.

Headnote:Indian Penal Code, 1860-Sections 148, 302/149 and 323/149-Three appellants convicted under where as two other accused were acquitted by trial Court-Judgment confirmed by High Court in appeal-Appellants armed with guns arrived-Deceased was sitting in courtyard and PW1, PW2 and PW3 were sitting near door of the house and second deceased, servant of 1st deceased, was working-Appellant fired gun shot on deceased and as second deceased and witnesses ran to rescue of deceased, other appellant fired shot which hit second deceased-Conviction recorded on testimony of three eye witnesses-No reason to not to accept evidence of eye witnesses-Merely because witness was co-accused with deceased in another case, his evidence could not be rejected but needed evaluation with caution-Evidence was corroborated by medical evidence-Contention that improvements were made to bring evidence in line with medical evidence was without substance-Some delay, duly explained, in examination of PW2, would not be ground to doubt his evidence-Conviction was liable to be upheld.
Held : After considering his evidence in toto, the High Court found the evidence to be implicitly truthful and reliable. Though his presence was attempted to be shown as doubtful, we do not find any reason to accept the plea. His presence at the place of incident was explained and his evidence cannot be thrown out as unreliable or tainted, merely because in some cases he was a co-accused with the deceased Surya Prakash Singh. This circumstance would not warrant mechanical rejection of his testimony. Evaluation with caution was needed, which has been done. The manner of assaults as described by him is also corroborated by medical evidence. The plea that improvements were made to bring the ocular evidence in line with the medical evidence is clearly without substance. We have read the evidence and found that whatever was stated was by way of a clarification and certainty cannot be termed to be an improvement. Therefore, the evidence of PW2 alone was sufficient to fasten guilt on the accused appellants. But, added to that is the evidence of PW1, the informant, which further strengthens the prosecution version. The First Information Report was lodged with promptitude. Merely because PW2 was examined after some time, the reason thereof has been clearly explained by the Investigating officer who stated that after the information was lodged by PW1 at the police station he interrogated him and thereafter left for the place of incident which he reached at 8.45 P.M. So far as time of injury on PW2 is concerned, the opinion of PW4 (doctor) is clearly hypothetical. He himself has stated that there can be a margin of 2-3 hours. That being so, credible evidence of eyewitnesses does not become tainted. Great emphasis was led on the approximate time of injury. That in no way affects the credibility of PW2 s evidence. Though evidence of PW1 does not specifically indicate the injury on PW2 that is but natural. Before a young person two murders were committed and it is quite natural to create a sense of shock and minor variations in his evidence do not affect his testimony which is otherwise credible. Unless the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. (See Solanki Chimanbhai Ukabhai v. State of Gujarat (AIR 1983 SC 484). To similar effect is the decision in State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154). (Paras 11 and 12)

JUDGMENT

Arijit Pasayat, J.-Appellants having unsuccessfully challenged their conviction before the Allahabad High Court have filed this appeal.

2. They along with two others, namely, Mahesh and Bhan Chand faced trial for alleged commission of offence punishable under Sections 148, 302 read with 149 and 307 read with 149 of the Indian Penal Code, 1860 (in short the IPC ). The trial Court acquitted Mahesh and Bhan Chand on all counts, but convicted the present appellants. So far as accused Jai Karan and Babu were concerned, they are convicted under Sections 148, 302 read with 149 and 323 read with 149 IPC and accused Veer Bhadra was convicted under Sections 148, 302, 302 read with 149 and 323 read with 149 IPC. They were each awarded life sentence for the offences punishable under Sections 302 and 302 read with 149 IPC as the case may be, and two years and six months for the offence under Sections 148 and 323 read with 149 IPC respectively.

3. The convicted accused persons preferred appeal against their conviction, while the State preferred appeal against the acquittal. Both the appeals were heard together in view of the common factual matrix and were disposed of by the impugned judgment.

4. Prosecution case as unfolded during trial is as follows:

The informant-Ashok Kumar Singh (PW-1) is the son of Surya Prakash Singh (hereinafter referred to as the deceased ). At the time of the incident the informant, deceased Surya Prakash Singh and another deceased Ram Lal, injured Ram Chandra Singh (PW-2) and appellants Jai Karan, Veer Bhadra and Babu were living in village Alaipur within the limit of police station Sidhauli district Sitapur. Appellants Veer Bhadra and Jai Karan are real brothers and appellant Babu is son of their maternal uncle. There was enmity between Veer Bhadra and Jai Karan on one side and deceased Surya Prakash Singh on the other. Few months before the incident, Veer Bhadra, Jai Karan, their brother Pyarey Lal and a relative had attacked Surya Prakash Singh with pistol and bhala. Surya Prakash Singh who had suffered injuries lodged FIR against Mahesh, Veer Bhadra and his others.

5. On the date of the incident i.e. 17.12.1978 at about 4.00 p.m. deceased Surya Prakash Singh was sitting on a cot in his courtyard situated at a short distance from the door of his house. His servant deceased Ram Lal was weeding potato crop in the field situated to north of the said courtyard. Informant Ashok Kumar Singh (PW-1) Ram Chandra Singh (PW-2) Vishwanath Shukla and Narendra Singh (PW-3) were sitting near the door of his house. Suddenly, appellants Veer Bhadra, Jai Karan and Babu armed with guns along with two unknown persons, one of whom was armed with a kanta and the other with a banka came. Immediately, appellant Veer Bhadra fired at deceased Surya Prakash Singh, as a consequence of which he fell down. When informant Ashok Kumar Singh (PW1), deceased Ram Lal and others rushed to rescue deceased Surya Prakash Singh, appellants Jai Karan and Babu fired; the former on Surya Prakash Singh and the latter on Ram Lal. Jai Karan also assaulted Ram Chandra Singh (PW2) with the barrel of gun. The two unknown persons assaulted Surya Prakash Singh with kanta and banka. After murdering Surya Prakash Singh and Ram Lal and injuring Ram Chandra the appellants and the unknown persons ran away.

6. The first information report was lodged by Ashok Kumar Singh (PW1). Two others namely Ramchandra Singh (PW2) and Narendra Singh (PW3) were stated to be the eye-witnesses of the occurrence. Investigation was undertaken and on completion thereof charge sheet was placed. It has to be noted that the accused persons had also lodged an information in the police alleging that the deceased Surya Prakash Singh and his relatives assaulted some of the accused persons. During trial, they denied the allegations and claimed that they had been falsely implicated.

7. Sixteen witnesses were examined to further the prosecution version. Three of them i.e. PWs 1, 2 and 3 were c

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2003 Supreme(SC) 1047

IMPORTANT POINTMerely because witness was a co-accused with deceased in some cases would not warrant mechanical rejection of his testimony but would need evaluation with caution.

Cases Referred (2)

IMPORTANT POINT
Merely because witness was a co-accused with deceased in some cases would not warrant mechanical rejection of his testimony but would need evaluation with caution.